The idea that an attorney's work product should receive protection from discovery was first recognized by the United States Supreme Court in 1947. Today, California law provides absolute protection to writings that reflect "an attorney's impressions, conclusions, opinions, or legal research or theories. All other work product receives qualified protection; such material "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice."
On a 2-1 vote, the Court of Appeal (Fifth Appellate District) held that the witness statements were not protected under the attorney work product doctrine.
The CA Supreme Court was recently asked to decide if the Fifth Appellate District was correct and to determine what work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant's counsel, and second, information concerning the identity of witnesses from whom defendant's counsel has obtained statements.
The case that has lead to this legal issues is Coito vs. The Superior Court of Stanislaus County. Coito concerns the death of Jeremy Wilson, a teenager who drowned in the Tuolumne River. His family sued various defendants, including the city of Modesto and the state Department of Water Resources. The attorney general's office sent two investigators to take recorded statements from four witnesses to the drowning.
Counsel for Wilson's family sought discovery of the recordings via Judicial Council Form Interrogatory 12.3. A trial judge denied the firm's motion to compel, but the Fifth District Court of Appeal reversed, saying that witness statements "are classic evidentiary material."
On Monday, June 26, In Coito vs. The Superior Court of Stanislaus County the CA Supreme Court held the following:
In light of the legislatively declared policy and the legislative history of the work product privilege, the Court held that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its "attorney's impressions, conclusions, opinions, or legal research or theories." If not, then the items may be subject to discovery if plaintiff can show that "denial of discovery will unfairly prejudice [her] in preparing [her] claim . . . or will result in an injustice."
As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).
This new holding will make it harder for opposing counsel to obtain taped witness interviews in civil cases, giving attorneys greater opportunity to collect vital information without having to give away too much information to their opponent.
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